AUSTRALIA Law and Practice Contributed by: John Lee, Siabon Seet, Vanessa Farago-Diener and Irini Lantis, Gilbert + Tobin
Interlocutory Decisions or Orders Appeals from an interlocutory order or decision of the court requires leave of the court to appeal. An interlocutory order or decision is one made during a proceeding before a final decision is given. In the Federal Court, this can be done by: • applying for leave orally – this is made to the judge who delivered the relevant decision or made the relevant order at the time these are pronounced; or • applying for leave by filing a written application – within 14 days of the decision being made, to be either via a hearing or on the papers. In a state/territory Supreme Court, this can be done by filing a written application within 28 days of the material date of the decision or orders. Final Decisions or Orders If the decision appealed from is final and leave has not been considered, the party wishing to appeal must file a notice of appeal within 28 days of the decision being delivered, setting out brief grounds relied on in sup - port of the appeal and the decision or orders it seeks. A copy of this must be served on the defendant. Appeals may be filed by either the plaintiff or the defendant to the decision appealed from. It is also possible for each of the parties to appeal the deci - sion. In this situation, the defendant may file a notice of cross-appeal setting out the parts of the decision or the orders on which it seeks a different result. A party may choose this course even though it is successful in the overall result. 8.2 Factual or Legal Review Federal Court Appeals in the Federal Court of Australia may be against findings of fact or law. To succeed on appeal, an appellant must successfully demonstrate that the primary judge fell into error, such that the correctness of the decision reached is in doubt. Error may be found in discretionary matters, such as where an appellant believes the primary judge gave
eg, 60% of the successful party’s costs as assessed or taxed. Following the making of a costs order by the court, the successful party will either file a Bill of Costs or an Application for Lump Sum Costs detailing the costs it seeks recovery of and the relevant amount. These documents are typically prepared by either the acting solicitors or an experienced cost assessor. The unsuc - cessful party will have an opportunity to respond to the costs application after which the court, usually a registrar and not the hearing judge, will make a final assessment. There are two tiers of appeal above a single judge of the Federal Court and state/territory Supreme Court. • The first tier is the appellate jurisdiction of the relevant court sitting as a Full Court (Federal Court) or Court of Appeal (state/territory Supreme Court). First instance decisions from a single judge of the court can be appealed to the Full Court (Federal Court) or Court of Appeal (state/territory Supreme Court), which is made up of three or five judges. If the decision is interlocutory, leave of the court is required. • The second tier is the High Court of Australia, which is Australia’s highest appellate court. Appeal to the High Court is not a right; special leave to appeal is required. 8. Appeal 8.1 Appellate Procedure Appeals to the Full Court or Court of Appeal and the High Court are usually heard within four to nine months, although the time taken for issuing a deci - sion varies. For an appeal to succeed, a party must convince the court that the judge who heard the original case (or the Full Court or Court of Appeal, if appealing to the High Court) made an error of law and that the error was of such significance that the decision should be overturned.
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